Opinion

Gnited States District Court

for the SQorthern District of Oklahonia

Case No. 12-cv-411-JDR-CDL

CONSOLIDATED WITH

Case No. 15-cv-455-JDR-JFJ

KEVIN L. JETER; JOE A. JETER; BARBARA LUCAS; JAMES H.

MILLER; SHARON RIGSBY MILLER; LARRY SMITH; JANICE SUE

PARKER,

Plaintiffs,

VETSUS

WILD WEsT Gas, LLC; WILD WEsT Gas, INC.; BULLSEYE EN-

ERGY, LLC; FOUNTAINHEAD, LLC; KRS&K; CEP MIpD-ConrtTI-

NENT, LLC; ROBERT M. KANE; LOUISE KANE ROARK; ANN

KANE SEIDMAN; MARK KANE; PAMELA BROWN; GARY BROWN;

GASHOMA, INC.; PURGATORY CREEK GAS, INC.; REDBIRD OIL;

WHITE Hawk Gas, INC.,

Defendants.

— and —

KEVIN L. JETER; JOE A. JETER; BARBARA LUCAS; JAMES H.

MILLER; SHARON RIGSBY MILLER; LARRY SMITH; JANICE SUE

PARKER; JAMES D. ENLOE; CAROLYN R. ENLOE; SCOTT BAILY,

Consolidated Plainizffs,

versus

CEP MIpD-CONTINENT, LLC; ROBERT M. KANE; LOUISE KANE

ROARK; ANN KANE SEIDMAN; MARK KANE; PAMELA BROWN;

GARY BROWN,

Consolidated Defendants.

OPINION AND ORDER

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After prevailing on multiple claims by numerous plaintiffs, Defendants

Bullseye Energy, Inc., KRS&K, and CEP Mid-Continent moved to recover

their attorneys’ fees from some (but not all) of the plaintiffs in this case. Dkt.

557 at 1.1 They later moved to supplement that motion to remove some fees

and add others. Dkt. 567. After reviewing both motions, the accompanying

briefs and exhibits, and the extensive record in this case, the Court concludes

that attorneys’ fees should be awarded to the moving Defendants, but not to

the extent requested. The Court therefore denies Defendants’ motion to sup-

plement [Dkt. 567], grants the motion for fees in part [Dkt. 557], and holds

that Defendants are entitled to recover $352,432.43 in attorneys’ fees from

Mr. Miller, Mrs. Miller, Mr. Smith, and Ms. Parker. Of that amount, Mr.

Smith and Ms. Parker are responsible for no more than $343,914.43.

After spending over ten years and $1.5 million dollars defending

against claims for alleged breaches of contract, fraud, and RICO violations,

Defendants Bullseye Energy, Inc., KRS&K, and CEP Mid-Continent, LLC,”

successfully resolved all the claims asserted against them. Some of these

claims were resolved by settlement, while others were resolved by Court or-

ders, including an order granting judgment as a matter law on all of the claims

' Although the docket indicates the motion was filed on behalf of nine defendants,

the motion itself represents that only Bullseye, KRS&K, and CEP seek an award of fees.

Dkt. 557 at 1. Furthermore, the supporting declaration indicates that “Bullseye, KRS&K,

and CEP jointly incurred total attorneys’ fees in this matter of $1,626,477.14” and that

“Bullseye, KRS&K, and CEP” are [the parties] seeking an award of attorneys’ fees” from

the plaintiffs. Dkt. 557-1 at J] 9, 30-33. The Court concludes that the motion was filed on

behalf of Bullseye, KRS&K, and CEP, and no other parties.

? Over its fourteen-year history, this case has involved many parties, most of whom

did not bring and were not named in this motion. The Court uses “Defendants” to refer to

the moving parties (Bullseye Energy, CEP, and KRS&K) and “Plaintiffs” to refer to the

individuals who are the subject of this motion (James Miller, Sharon Miller, Barbara Lucas,

Larry Smith, Janice Sue Parker, James Enloe, Carolyn Enloe, and Scott Bailey).

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that remained and were presented at trial. See Dkts. 498, 500, 501, 529, 548,

549, 555.3

Following the entry of final judgment [Dkt. 556], Bullseye, KRS&K

and CEP asked the Court to award $1,616,477.14 in attorneys’ fees against

James and Sharon Miller; $1,553,627.80 against Barbara Lucas;

$1,577,408.22 against Larry Smith and Janice Parker; and $1,418,535.49

against James Enloe, Carolyn Enloe, and Scott Bailey. Dkt. 557 at 18. CEP

also requested $90,091.27 in attorneys’ fees against Plaintiffs James Miller,

Sharon Miller, Larry Smith, and Janice Parker, which purportedly reflects the

fees incurred following an offer of judgment made to those Plaintiffs. Jd.

Mr. Miller—and only Mr. Miller—opposed Defendants’ motion. Dkt.

563. Later, Defendants moved to amend and supplement their motion for

fees. In that filing, Defendants asked to increase the award of fees by

$9,696.30, an amount that they arrived at by eliminating some fees associated

with non-fee-bearing RICO claims and adding charges associated with com-

puterized research. Dkt. 567. That motion was also opposed.

Defendants’ motion and associated supplement raise the following is-

sues, only some of which are addressed in detail by the parties: First, how

should the Court address the fact that only one of several Plaintiffs opposed

Defendants’ motion for fees? Second, what are the merits of the objections

raised by Mr. Miller? Third, should Defendants’ motion to supplement be

considered in the Court’s determination of fees? And fourth, what is an ap-

propriate award of fees in this case, particularly in view of the fact that some

of the fees Defendants seek to recover are associated with settled claims, set-

tling parties, dismissed defendants, and non-fee bearing claims?

3 All citations use CM/ECF pagination.

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II

The Court begins with the first question: How should the Court ad-

dress the fact that only James Miller opposed Defendants’ motion for fees?

As Defendants correctly note, Mr. Miller has been reminded on numerous

occasions that he is not a lawyer and may not advocate for or file documents

on behalf of any other party. Nevertheless, Mr. Miller purports to challenge

Defendants’ supplement on behalf of all Plaintiffs. See Dkt. 568 at 14. This he

cannot do. See 28 U.S.C. § 1654 (permitting plaintiffs to “conduct their own

cases personally or by counsel”); Meeker v. Kercher, 782 F.2d 153, 154 (10th

Cir. 1986) (holding that the pro se litigant had right to appear on his own be-

half but did not have the right to represent his daughters). Mr. Miller’s argu-

ments are his own, and they may not be imputed to the other Plaintiffs who

are the subject of Defendants’ motions.

This does not mean, however, that the Court must accept Defendants’

motions wholesale. Under the statutes purportedly applicable in this case, the

prevailing party may recover only “reasonable” attorneys’ fees. Okla. Stat.

tit. 12, § 936.A; Okla. Stat. tit. 12, §1101.1.B; Okla. Stat. tit. 52, §570.14.C. It

is the Court’s role to determine what constitutes a reasonable, proper fee

award. See Spencer v. Oklahoma Gas & Elec. Co., 2007 OK 76, 13, 171 P.3d

890, 895 (“In all cases, the attorney fees must bear some reasonable relation-

ship to the amount in controversy.”); Shadoan v. Liberty Mut. Fire Ins. Co.,

1994 OK CIV APP 182, 4 15, 894 P.2d 1140, 1144, corrected (Jan. 11, 1995),

overruled on other grounds by Hamilton v. Northfield Ins. Co., 2020 OK 28, 715,

473 P.3d 22 (“As in every attorney fee case, [the] trial court retains discretion

to determine the proper amount of an attorney fee award.”). Thus, the Court

must independently determine what a “reasonable” award would be, regard-

less of whether a formal objection has been raised by all parties subject to

Defendants’ motion. E.g., Lane v. Sunoco, Inc. (R&M), No. 03-cv-760-FHM,

2006 WL 8457138, at *1 (N.D. Okla. May 9, 2006) (declining to deem motion

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for fees admitted and recognizing the court’s independent “obligation to re-

view fee requests to ensure they are reasonable’); Ellison v. GAB Robins, Inc.,

No. CIV 02-127 MV/LFG, 2006 WL 8444544, at *10 (D.N.M. Jan. 26, 2006)

(recognizing that, although the defendant did “not object to the proposed

hourly rate” for four associates, the court had “an independent obligation to

ensure that the requested hourly rates and fees are reasonable”).

III

The Court next turns to Mr. Miller’s objections. Mr. Miller appears to

agree that at least some of Defendants’ claims are subject to the fee-shifting

provision of the Production Revenue Standards Act. See Dkt. 563 at 2, 4 (rec-

ognizing that Plaintiffs alleged violations of the PRSA, which permits prevail-

ing parties to recover reasonable attorneys’ fees). Nevertheless, he contends

that Defendants’ motion is premature because the case remains on appeal.

See id. at 4; Dkt. 568 at 11. In addition, he argues that attorneys’ fees should

not be awarded when a plaintiff’s claims are well-grounded in fact and law

and there is no evidence of bad faith or vexatious conduct.* See Dkt. 568 at 8-

11.

The Court overrules Mr. Miller’s objection that the motion for fees is

premature. Contrary to Mr. Miller’s arguments, a trial court may enter an

award of attorneys’ fees while a case is pending appeal. The resolution of a

motion for attorneys’ fees is “a procedural and ministerial function over

which the district court retains jurisdiction even if an appeal is pending.” See

Harris Mkt. Rsch. v. Marshall Mktg. & Comme?ns, Inc., 948 F.2d 1518, 1526 n.3

(10th Cir. 1991) (rejecting argument that the district court was without juris-

diction over motion for attorneys’ fees due to pending appeal). The decision

to award fees is “perhaps the paradigmatic example of a collateral issue a

* Mr. Miller also challenged Defendants’ ability to recover fees associated with the

RICO claims and charges associated with computerized research. Dkt. 568 at 7. Those is-

sues are addressed in Sections IV and V, znfra.

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district court may entertain after an appeal has been taken.” McKissick ».

Yuen, 618 F.3d 1177, 1196 (10th Cir. 2010). This Court has authority to ad-

dress Defendants’ motion for fees despite the pending appeal.

The Court likewise rejects Mr. Miller’s argument that attorneys’ fees

cannot be granted in the absence of bad faith or litigation misconduct. The

American Rule, which governs the recovery of attorneys’ fees in Oklahoma,

“provides that courts are without authority to award attorney fees 7m the ab-

sence of a specific statute or a contractual provision allowing the recovery of

such fees, with certain exceptions.” Barnes v. Oklahoma Farm Bureau Mut.

Ins. Co., 2000 OK J 46, 11 P.3d 162, 179, as corrected (Jan. 16, 2001) (em-

phasis added) (citing 7RW/Reda Pump v. Brewington, 1992 OK 31, J 13, 829

P.2d 15, 22).° A court’s ability to award attorneys’ fees when a party acts in

bad faith or vexatiously is an exception to the American Rule that applies even

in the absence of a specific statute. See id. at | 50, 11 P.3d at 180. It is not a

hurdle that must be cleared even when a specific statute expressly authorizes

the recovery of attorneys’ fees.

Here, a statute specifically permits prevailing parties to recover rea-

sonable attorneys’ fees incurred for claims brought under the PRSA. See Okla.

Stat. tit. 52, § 570.14.C. The statute does not limit recovery to those cases in

which the losing party acted in bad faith. To the contrary, it provides that the

“prevailing party in any court proceeding brought pursuant to the [PRSA]

shall be entitled to recover the costs of the suit, including . . . reasonable attor-

ney and expert witness fees.” Jd. (emphasis added). The language of the stat-

ute is mandatory. Because Mr. Miller acknowledges that Plaintiffs’ claims for

5 See Pioneer Equip. Rental, L.L.C. ». W.S. Bowlware Const., Inc., 2008 OK CIV APP

32, 17, 180 P.3d 694, 696 (recognizing that, while attorneys’ fees are ordinarily not recov-

erable absent a statutory or contractual provision authorizing the award of those fees, a nar-

row exception to that rule exists when a party “acts in bad faith, vexatiously, wantonly, or

in an oppressive manner”).

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nonpayment and underpayment of royalties were brought under the PRSA,

and because Defendants prevailed with respect to all claims asserted under

that statute, Defendants are entitled to recover the fees they reasonably in-

curred in the defense of those claims.

IV

Having determined that Defendants may recover some fees, the Court

must now determine whether it should consider only Defendants’ original fee

request, or whether it should consider the additional expenses in Defendants’

motion to amend.° See Dkt. 557 (filed February 5, 2026); Dkt. 567 (filed April

10, 2026). Defendants’ original motion was filed within the timeframe set

forth by Rule 54 of the Federal Rules of Civil Procedure. The motion to

amend, however, was not filed within prescribed fourteen-day filing period.

See Fed. R. Civ. P. 54(d)(2)(B) (requiring motions for fees to be filed “no later

than 14 days after the entry of judgment”’).

The Court denies Defendants’ motion to supplement as untimely. De-

fendants provide little explanation for their failure to include legal research

expenses in their original request. At most, they argue that they recently be-

came aware of a 2004 opinion that justified the inclusion of these expenses.

Dkt. 567 at 2. But they do not explain why they were unable to locate this

twenty-year-old opinion earlier, nor do they explain why they failed to make

a good-faith argument for the inclusion of their electronic research expenses

in their original motion. Absent such a showing, the Court finds no reason to

depart from the Federal Rule’s requirement that a motion for fees stating the

amount sought (or a fair estimate thereof) must be filed “no later than 14 days

after the entry of judgment.” Fed. R. Civ. P. 54(d)(2)(B). Defendants’ motion

to supplement their original motion for fees to include additional expenses is

° The motion to amend eliminated certain expenses associated with Plaintiffs’

RICO claims. The RICO-related fees are addressed in Section V, infra.

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denied. See King v. Midland Credit Mgmt., Inc., No. 11-cv-02808-CMA-BNB,

2013 WL 2236934, at *2 (D. Colo. May 21, 2013) (denying supplemental mo-

tion for fees when the moving party failed to provide a timely estimate of

those fees).’

The Court now turns to the ultimate question presented by Defend-

ants’ motion: What is a “reasonable” fee for the defense of this admittedly

complicated and long-litigated action? Because “Oklahoma strongly adheres

to the American Rule that prevailing-party attorney fees are not recoverable

in the absence of a statute or enforceable contract,” the Court must take care

to apply the rule strictly and authorize only those fees that are expressly re-

coverable under the applicable statute. Parker ». Genson, 2017 OK CIV APP

59, 75, 406 P.3d 585, 588; see Lee v. Griffith, 1999 OK 32, 75, 990 P.2d 232,

233 (stating that an award of fees is “recoverable to a prevailing party only for

7 Even if the Court were to consider the supplement, the Court would not be in-

clined to award the costs requested. Although it was once common for firms to charge cli-

ents for the use of electronic tools, “Westlaw and LexisNexis largely have replaced physical

libraries for many lawyers at law firms,” and many firms “pay a monthly fee for unlimited

Westlaw or LexisNexis research... .” SFF-TIR, LLC v. Stephenson, 452 F. Supp. 3d 1058,

1209 n.59 (N.D. Okla. 2020). Defendants have not explained whether and to what extent

the expenses associated with electronic research were adjusted to reflect counsel’s payment

arrangements with Westlaw and Lexis, if any. Furthermore, the exhibit in support of the

motion to supplement indicates that the invoiced amounts were “prepared based upon in-

voices received and paid by Hall Estill,” but it does not expressly state that all of those ex-

penses were incorporated into bills sent to and paid by Defendants, nor is it clear which

portion of the expenses are attributable to work performed in connection with the moving

Defendants, the fee-bearing claims, and the non-settling Plaintiffs. See Section V, infra. The

Court will not award fees and expenses to Defendants without some evidence that those

fees were incurred in connection with fee-bearing work performed in defense of claims

brought by the Plaintiffs who are the subject of Defendants’ motion, nor will it award fees

without evidence that the expenses were ultimately paid by Defendants (rather than by

counsel as part of the costs of doing business).

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the work attributable to a claim for which such fees are statutorily recovera-

ble”).

Defendants, as the moving parties, bear the burden of proving they are

entitled to the fees they are requesting. Parker, 2017 OK CIV APP 59, 77, 406

P.3d at 589 (quoting Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)). To do so,

they must present evidence to support the award of fees under Oklahoma’s

two-part test in Burk. Id. at | 12, 406 P.3d at 591 (discussing Burk ». City of

Okla. City, 1979 OK 115, 598 P.2d 659); see Henderson v. Horace Mann Ins. Co.,

560 F. Supp. 2d 1099, 1108 (N.D. Okla. 2008) (applying the Burk test to a

state-law claim asserted in federal court). Under that test, the Court begins

by multiplying counsel’s hourly rate by the number of hours worked. Then,

the Court determines whether a bonus or incentive fee is appropriate based

upon:

1) time and labor required, novelty and difficulty of the ques-

tions involved, and skill requisite to properly perform the legal

services;

2) if apparent to the client, the likelihood the representation

will preclude other employment by the attorney;

3) customary charge in the community for similar legal ser-

vices;

4) amount involved and results obtained;

5) time limitations imposed by the client or the circumstances;

6) nature and length of the professional relationship with the

client;

7) the experience, reputation, and ability of the attorney per-

forming the legal service; and

8) whether the fee is fixed or contingent.

Parker, 2017 OK CIV APP 59, 4 12, 406 P.3d at 591 (quoting Jn re Adoption of

Baby Boy A, 2010 OK 39, 27, 236 P.3d 116).

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Defendants argue that they are entitled to recover over $1,600,000.00

in attorneys’ fees incurred in the defense of this matter.’ Defendants support

this claim with a declaration providing information on the attorneys and par-

alegals who worked on this case, charts itemizing time entries for the work

performed (including the identity of the biller, date, hourly rate, hours

worked, total billed, and description of the work performed), and copies of

the offers of judgment submitted to Plaintiffs. Dkt. 557.

Mr. Miller and his fellow Plaintiffs do not object to the rates charged

by Defendants’ counsel, and the Court sees no reason to reduce those rates.

Based on its knowledge of the prevailing rates charged in Tulsa, Oklahoma,

the complexity and protracted nature of the case, and counsel’s representa-

tion that the rates reflect a reduction specific to Defendants’ circumstances,

the Court finds that the rates charged by Defendants’ counsel are reasonable

and appropriate. The Court adopts those rates in its analysis.

The Court cannot, however, accept Defendants’ position that it is en-

titled to recover for all the hours submitted in their motion for fees. It appears

that Defendants wish to recover for a// the time their attorneys’ spent on this

case, without reducing that time to account for time spent on claims asserted

by settling plaintiffs or work attributable to non-moving, dismissed defend-

ants. Furthermore, although Defendants did agree to reduce their request for

fees by $10,270.97 to eliminate some time spent on RICO-related claims, this

adjustment is not sufficient to properly account for the time spent on those

non-fee bearing claims.

The Court cannot award Defendants fees based on anything other

than the successful defense of Plaintiffs’ fee-bearing claims. See Lee »v. Griffith,

1999 OK 32, 75, 990 P.2d 232, 233; see also SFF-TIR, LLC v. Stephenson, 452

This approximation reflects Defendants’ initial estimate of $1,616,477.14 minus

$10,270.97 in fees associated with RICO claims.

No. 12-cv-411

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F. Supp. 3d 1058, 1199 (N.D. Okla. 2020) (recognizing that Oklahoma law

requires fees to be apportioned in the absence of evidence that all the work

devoted to the non-fee-bearing claim would have been incurred in connection

with the fee-bearing claim, and reducing the fee award to exclude work at-

tributable solely to securities claims). Because Defendants have not presented

evidence concerning the work attributable to the non-moving defendants and

the settling plaintiffs, and because Defendants have not sufficiently deter-

mined the amount of work attributable to the RICO claims, it falls to the

Court to determine what portion of the hours in Defendants’ motion should

be charged to Plaintiffs.°

The Court begins that determination by considering what portion of

the time spent should be allocated to the defendants who are not party to this

motion. Defense counsel represented not only the moving Defendants (Bull-

seye Energy, KRS&K, and CEP), but also several other defendants whose

claims were resolved prior to trial. These former parties include Wild West

Gas, LLC (terminated January 2016), Wild West Gas, Inc. (terminated Janu-

ary 2016), Gashoma, Inc. (terminated January 2016), Purgatory Creek Gas,

Inc. (terminated January 2016), Redbird Oil (terminated January 2016),

White Hawk Gas, Inc. (terminated January 2016), Robert M. Kane

* The Court is concerned by Defendants’ decision to attribute all the fees set forth

in their motion to Plaintiffs, particularly where some Plaintiffs did not assert any fee-bearing

claims. The Court also had significant difficulty parsing the evidence to determine what

hours were attributable to the fee-bearing claims asserted by Plaintiffs. Although it would

have been permissible to deny fees entirely under these circumstances, the Court concludes

Defendants are entitled to recover some fees and finds that a percentage-based apportion-

ment is reasonable, fair, and appropriate way to account for dismissed claims, dismissed

parties, and non-moving defendants. See Case v. Unified Sch. Dist. No. 233, Johnson Cnty.,

Kan., 157 F.3d 1243, 1254 (10th Cir. 1998) (recognizing that several circuits authorize the

outright denial of fees in § 1988 cases where the request for fees is “outrageously exces-

sive”).

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(terminated July 2025), Louise Kane Roarke (terminated July 2025), Ann

Kane Seidman (terminated July 2025), Mark Kane (terminated July 2025),

Pamela Brown (terminated July 2025), and Gary Brown (terminated July

2025).

The Non-Moving Defendants did not join the motion for fees filed on

behalf of Bullseye Energy, KRS&K, and CEP, and none of them filed an in-

dependent request for fees. See Dkt. 557 at 1. Thus, only three of the fifteen

defendants (or twenty percent of the parties represented by defense counsel)

have requested fees under Federal Rule of Civil Procedure 54. Nevertheless,

it appears that those three parties are seeking to recover one hundred percent

of the fees jointly incurred during the defense of this action, even though

some of those fees specifically pertain to work performed on behalf of the

Non-Moving Defendants. See Dkt. 557-2 at 68 (August 22, 2016 billing entry

for discovery/class certification discussion, preparation of corporate disclo-

sure statement, and “Rule 11 motion regarding the Browns’’); zd. at 128 (April

29, 2025 billing entry concerning motions to dismiss on behalf of Lucas,

Brown, KRS&K, and the Kane Siblings).

Defendants have not provided evidence demonstrating that the mov-

ing Defendants agreed to pay the full cost of the joint defense, actually paid

the full cost of the joint defense, or would have incurred that full cost in the

absence of the Non-Moving Defendants’ involvement. Without that

© The Court refers to these former parties, all of whom were represented by De-

fendants’ counsel, as the ““Non-Moving Defendants.”

4 Although counsel represented that the fees listed in Exhibit A to her declaration

reflect “fees incurred by Defendants,” it is not clear which “Defendants” incurred (or paid)

those fees. Dkt. 557-1 at 9. There is no evidence of the fee arrangement between counsel,

Defendants, and the Non-Moving Defendants, nor is there any indication that counsel dif-

ferentiated the time spent on behalf of the Non-Moving Defendants when preparing in-

voices or sought to eliminate those fees from Defendants’ motion. The Court will not as-

sume, without evidence, that the moving Defendants agreed to foot the bill for the Non-

Moving Defendants.

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evidence, the Court cannot, and will not, assume that all the fees incurred by

Defendants’ counsel were reasonably and appropriately incurred on behalf of

the moving Defendants, particularly where some of the time entries plainly

reflect work specific to non-moving parties. Indeed, to do so would be con-

trary to Oklahoma’s practice of requiring the apportionment of legal fees

among claims and parties. Although the Court has not found case law ad-

dressing this precise scenario, the Oklahoma Court of Civil Appeals ad-

dressed an analogous situation in Parker »v. Genson, 2017 OK CIV APP. 59, J]

5-11, 406 P.3d 585, 588-91. In that case, only one of three jointly represented

defendants ultimately prevailed on the merits, while the other two settled

their claims. The court held that the trial court committed reversible error

when it failed to determine the portion of the attorneys’ fees attributable to

the sole prevailing defendant. See zd. (reversing and remanding award of fees

“to determine the proper amount of fees to be apportioned to [the prevailing

defendant]”). The Parker court concluded that undifferentiated time entries

by attorneys who represented multiple co-defendants must be apportioned so

that the prevailing parties would recover only the attorneys’ fees they incurred

in their own defense. Id. at 7 6, 406 P.3d at 589. This Court will follow suit.

See also A. Kush & Assocs., Lid. v. Am. States Ins. Co., No. 85 C 493, 1991 WL

101631, at *2 (N.D. Ill. May 31, 1991) (holding that the plaintiff “would not

be entitled to all of its costs associated with every claim it made against Amer-

ican States, let alone any costs related solely to its claims against the [settling]

co-defendant”’).

Rather than conduct an hour-by-hour evaluation to determine which

fees should be attributed to the Non-Moving Defendants, the Court will ap-

ply a percentage reduction to Defendants’ fee request. See Laca v. United

States, No. 22-cv-00366-SEH-SH, 2024 WL 4203494, at *8 (N.D. Okla.

Sept. 16, 2024) (stating that a court’s “assessment of the reasonableness of

hours spent on a litigation activity . . . does not have to be an hour-by-hour

13

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evaluation”). Here, the moving Defendants make up twenty percent of the

parties jointly represented by their counsel. But an eighty-percent across-the-

board reduction would be excessive. Six of the Non-Moving Defendants were

dismissed from this action in 2016 (relatively early in the case given the unu-

sual length of this action), and it would be inappropriate to attribute fees to

them on a pro rata basis. And, even with the remaining six Non-Moving De-

fendants (all of whom were heavily involved in this action until the months

prior to trial, when the claims against them were resolved by summary judg-

ment) a straight, pro-rata adjustment would not reflect the reality that much

of the work performed by Defendants’ counsel would have been performed

even if some of the Non-Settling Defendants had never been sued. The

Court, taking all these realities into account, concludes that a forty-percent

across-the-board reduction in the requested fees fairly approximates the work

that is allocable to the twelve Non-Moving Defendants. The Court will re-

duce the requested fee amounts accordingly.

Of course, the Court’s determination that sixty percent of the re-

quested fees are allocable to Defendants does not mean that all those fees are

recoverable by Defendants. Defendants face several obstacles to recovering the

fees apportioned to them: First, Defendants have not presented evidence sup-

porting an award of attorneys’ fees against Ms. Lucas. Second Defendants

seek to recover for work performed in defense of non-fee-bearing claims.

Third, Defendants seek to recover for work undertaken in defense of claims

asserted by parties other than Plaintiffs. Finally, Defendants seek to recover

for time spent on tasks that are ministerial and clerical in nature. All four is-

sues affect Defendants’ recovery.

To begin, the Court is concerned that Defendants requested over $1.5

million in attorneys’ fees from Barbara Lucas. By Defendants’ own

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admission, Ms. Lucas failed to respond to discovery, failed to respond to no-

tices regarding the case, failed to file required documents, and failed to par-

ticipate in this lawsuit for “several years” prior to trial. Dkt. 468. Defendants

have not explained why they spent over a million dollars in legal fees as a re-

sult of Ms. Lucas’s participation in this matter. The Court concludes, based

on the record and the itemized list provided by Defendants, that Ms. Lucas’s

role in this lawsuit was minimal. Even if Defendants are entitled to prevailing

party status based on Ms. Lucas’s failure to appear (an issue that Defendants

do not address in substance), they have failed to present any evidence or

argument explaining why a woman who could not be reached by her counsel,

failed to respond to discovery, and had “not participated in this case in several

years” should be forced to pay $1.5 million for the defense of claims she failed

to prosecute. Defendants’ request for fees from Ms. Lucas is unsupported by

the evidence, and the Court denies the request.

With respect to the amounts requested from Mr. and Mrs. Miller, Mr.

Smith, Ms. Parker, Mr. and Mrs. Enloe, and Mr. Baily, the Court must adjust

Defendants’ request for fees to exclude any time spent in connection with

non-fee-bearing RICO claims. Defendants recognize this to a point, even go-

ing so far as to request a $10,270.97 reduction to eliminate some fees associ-

ated with their defense of the RICO claims. But Defendants’ proposed reduc-

tion does not go far enough: Defendants only seek to eliminate costs incurred

between 2022 and 2025. But Plaintiffs’ RICO claims were asserted far earlier.

Compare Dkt. 567-1 (setting forth time entries associated with work per-

formed between 2022 and 2025), with Dkt. 557-2 at 33 (referencing RICO-

related work in March 2015), and Dkt. 152 (amending allegations to include

RICO claims in 2015). Furthermore, it appears that Defendants accounted

Ms. Lucas’s claims were initially dismissed without prejudice for failure to pros-

ecute. Final judgment against Ms. Lucas was entered on January 22, 2022.

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for RICO-related expenses simply by searching (some) time entries for the

term “RICO.” It does not appear that Defendants undertook any analysis to

determine what portion of the general time entries should be allocated to the

RICO claims, even though some of those entries are clearly associated with

those claims. F.g., Dkt. 557-2 at 126-132 (containing numerous entries per-

taining to motions for summary judgment without differentiating between

claims being addressed); Dkt. 557-2 at 49 (reflecting time entries for “new

Jeter lawsuit”).

“Where prevailing-party attorney fees are authorized for only some

of the claims in a multifaceted case, the award of fees must properly reflect a

segregation of the time spent on issues for which attorney fees are authorized

from time spent on other issues for which there is no authority for the award

of such fees.” Stlver Creek Invs., Inc. v. Whitten Const. Mgmt., Inc., 2013 OK

CIV APP 49, 7 13, 307 P.3d 360, 365. Thus, the Court must exclude the work

performed on the RICO-claims from its award of fees. Unfortunately, the

Court has little evidence from which it can make this exclusion because the

time entries are too vague to permit the Court to determine what work is al-

locable to the RICO claims, what work is allocable to the contract and fraud

claims,’ and what work is attributable to all three. Courts in similar circum-

stances have applied percentage-based cuts to exclude attorneys’ fees

Plaintiffs did not argue that work associated with the fraud and accounting claims

must be excluded from the requested fee award. There may be an argument that they should

be. Nevertheless, after reviewing the briefing and trial submissions and hearing the evidence

presented at trial, the Court concludes that the work performed in connection with the con-

tract-based claims overlaps almost entirely with the work performed in connection with the

fraud and accounting claims. To the extent the fraud and accounting claims required addi-

tional work by counsel, that work was likely minimal, and is encompassed by the reduction

taken for the RICO claims. There is no need for an additional downward adjustment to

account for work specific to the fraud or accounting claims. See Jackson v. Gaspar, No. 2:19-

cv-10450-DOC-E, 2022 WL 2155975, at *7 (C.D. Cal. Feb. 24, 2022) (declining to appor-

tion costs for claims that rested on virtually identical facts and were “too similar to appor-

tion”).

16

No. 12-cv-411

c/w No. 15-cv-455

attributable to non-fee-bearing claims. F.g., Jackson v. Gaspar, No. 2:19-cv-

10450-DOC-E, 2022 WL 2155975, at *6-*8 (C.D. Cal. Feb. 24, 2022) (reduc-

ing the lodestar amount by thirty percent to “apportion out claims for which

attorneys’ fees may not be recoverable” where the prevailing party failed to

differentiate between the time spent on fee-bearing claims). This Court will

do the same.

The Court begins with the time spent on the claims asserted by James

Enloe, Carolyn Enloe, and Scott Baily. None of the work performed with re-

spect to those Plaintiffs is associated with fee-bearing claims. As noted in this

Court’s order disposing of the case, Mr. Enloe, Ms. Enloe, and Mr. Baily only

asserted RICO claims against Defendants. See Dkt. 555 at 10. They did not as-

sert the fee-bearing claims that survived summary judgment, which is why

their claims were dismissed prior to trial. Jd. It would not be appropriate for

this Court to award fees to Defendants under the circumstances in this case,

and it is surprising that counsel for Defendants would make such a request.

Defendants’ requests for fees against Mr. Enloe, Ms. Enloe, and Mr. Baily are

denied.

This leaves only Defendants’ request for fees against James Miller,

Sharon Miller, Larry Smith, and Janice Parker. The Court finds that fifty per-

cent of the attorney time attributable to Defendants should be allocated to the

RICO claims, and the remaining fifty percent should be allocated to the fee-

bearing claims. This reduction is warranted because the billing details pro-

vided by Defendants indicate that counsel spent significant time on RICO-

specific research. See generally Dkt. 557-2. Further, one of the two class-action

lawsuits at issue in this consolidated action dealt solely with RICO claims,

and RICO claims were asserted by the purported classes in both cases. Alt-

hough no classes were certified, RICO claims remained pending against De-

fendants until the motions for summary judgment were resolved. A large por-

tion of the summary-judgment briefs was devoted to the RICO claims, and

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No. 12-cv-411

c/w No. 15-cv-455

for the vast majority of the litigation, RICO claims represented more than half

of the claims asserted against Defendants. Those claims were financially sig-

nificant because they carried the possibility of treble damages. Finally, some

of Defendants’ time entries relate to work unique to Mr. Enloe, Ms. Enloe,

and Mr. Bailey, all of whom asserted only RICO claims. F.g., Dkt. 557-2 at 118

(detailing discovery specific to Mr. Enloe, Mrs. Enloe, and Mr. Baily). Under

these circumstances, and in view of Defendants’ failure to present a proposed

apportionment that accurately accounts for the time spent on the RICO

claims, the Court cannot say with certainty that Defense counsel spent more

than half of their time on fee-bearing claims. Accordingly, the Court will re-

duce the fees allocated to Mr. Miller, Ms. Miller, Mr. Smith, and Ms. Parker

by half.

Next, the Court will reduce the allocation once again to reflect the

time spent on claims asserted by Kevin and Joe Jeter, who settled their claims

prior to trial. Dkt. 498. Once again, Defendants were required to account for

the time allocable to the Jeters, or present evidence why the time should not

be reduced to account for the Jeters’ claims. E.g., C-P Integrated Servs., Inc. ».

Muskogee City-Cnty. Port Auth., 2009 OK CIV APP 57, 7 34, 215 P.3d 835, 841

(affirming reduced award of fees when it was “clear that some of the legal fees

were incurred in the prosecution of . . . claims against URS, the project engi-

neer, with whom CPI settled prior to trial”). Once again, Defendants failed

to meet that burden.

The Court has reviewed the record and concludes that, for a time, the

interests of the Jeters and the Millers were aligned, and the time spent on the

Millers’ claims would have been spent regardless of the Jeters’ participation

in this action. Eventually, however, the Jeters’ interests and the Millers’ in-

terests diverged. The billing records show that Defendants’ counsel per-

formed work specific to the Jeters, not the Millers, and Defendants’ fee

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No. 12-cv-411

c/w No. 15-cv-455

request encompasses time spent on that work. F.g., Dkt. 557-2 at 74 (reflect-

ing time entries for “Jeter’s request for meeting” and conference with Jeters);

id. at 121-123 (containing multiple entries specific to Jeters, including deter-

mination of damages specific to those plaintiffs). Plaintiffs should not be re-

quired to pay for work that is attributable to other parties who have settled

their claims.‘ Defendants have made no attempt to apportion the time at-

tributable to the Jeters, so the Court must do so. The Court has reviewed the

evidence and concludes that an additional fifteen-percent reduction is appro-

priate to account for the time attributable to the settling plaintiffs.

Finally, the Court has identified a number of billing entries that reflect

ministerial tasks. F.g., Dkt. 557-2 at 114-123 (reflecting time entries for down-

loading and transmitting pleadings and paying invoices). Time spent on cler-

ical work cannot be recovered in a motion for attorneys’ fees. See Taylor ».

Chubb Grp. of Ins. Companies, 1994 OK 47, J 13, 874 P.2d 806, 809 (recogniz-

ing that charges for “time spent in copying documents and in doing other

secretarial tasks, rather than substantive legal work,” could not be charged as

attorneys’ fees). The Court has reviewed the exhibit and concludes that a five-

percent reduction is an appropriate estimation of time spent on clerical tasks.

“Tt is an interesting point—but not a material one—that Plaintiffs’ involvement in

this case may have worked to Defendants’ overall benefit, at least on paper. The Jeters, on

behalf of the class, would have settled this case in 2018 for concessions valued between $1.5

and $3.1 million dollars. Under that agreement, the defendants would have paid a portion

of the plaintiffs’ attorneys fees and borne their own. Mr. Miller and the Plaintiffs opposed

the settlement, which ultimately fell through. See Dkt. 324. The proposed classes were not

certified, Defendants settled with the Jeters for an undisclosed amount, and Plaintiffs took

nothing. Of course, there is no crystal ball that we can use to determine what would have

happened in Plaintiffs’ absence, but it may be that Plaintiffs saved Defendants’ money by

litigating this action, and are now, quite literally, paying for it.

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After applying the reductions set forth above, the Court determines

the appropriate base fee award under the first step of the Burk analysis to be

as follows:

Plaintiff Original Request Reduced Award

Mr. & Mrs. Miller $ 1,616,477.14 $ 391,591.59

Larry Smith $ 1,577,408.22 $ 382,127.14

Janice Parker $ 1,577,408.22 $$ 382,127.14

Mr. & Mrs. Enloe $ 1,418,535.49 $ -

Scott Baily $ 1,418,535.49 §$ -

Barbara Lucas $ 1,533,672.80 $ -

The Court now considers whether any of the factors in Burk warrant

an increase or decrease in the fee award. Parker ». Genson, 2017 OK CIV APP

59, J 12, 406 P.3d 585, 591. The Court finds no evidence to support an in-

crease based on the time, labor, novelty or difficulty of questions, or skill in-

volved; the likelihood that representation would preclude other employment;

the charges customary for similar services; the amount involved and the re-

sults obtained; time limitations; counsel’s relationship with the client; the ex-

perience or reputation of counsel; or the fee arrangement between client and

counsel. /d.

The Court does, however, note that Defendants’ counsel engaged in a

substantial amount of block billing. F.g., Dkt. 557-2 at 118 (reflecting multiple

block-billed entries that fail to permit meaningful review of the time spent on

specific tasks). Counsel’s block-billing greatly impaired the Court’s ability to

determine what tasks should be allocated to Plaintiffs. Because Defendants,

not Plaintiffs, should bear the risks associated with counsel’s billing practices,

the Court will apply a further ten-percent reduction to the calculated fee

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No. 12-cv-411

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award. F.g., Folsom v. Century Life Assurance Co., 2021 OK CIV APP 50, 412,

502 P.3d 1121, 1125."

When this reduction is applied, the resulting fee awards are as follows:

Plaintiff Original Request Final Award

Mr. & Mrs. Miller $ 1,616,477.14 $ 352,432.43

Larry Smith $ 1,577,408.22 $ 343,914.43

Janice Parker $ 1,577,408.22 $ 343,914.43

Mr. & Mrs.Enloe $ 1,418,535.49 $ -

Scott Baily $ 1,418,535.49 §$ -

Barbara Lucas $ 1,533,672.80 $ -

The Court notes that Mr. Miller, Mrs. Miller, Mr. Smith, and Ms. Parker are

not each required to pay the full fee amount listed above. The Court finds that

Defendants may recover up to $352,432.43 collectively from Mr. Miller, Mrs.

Miller, Mr. Smith, and Ms. Parker. Of that amount, only $343,914.43 may be

recovered from Larry Smith or Janice Parker.

VI

Having resolved Defendants’ motion for fees based on their status as

prevailing parties, the Court next turns to CEP’s request to recover

$90,091.27 for the attorney fees it incurred following an offer of judgment

under Okla. Stat. tit. 12 §1101.1.B. See Dkt. 557 at 18. Under that statute, CEP

may recover the “reasonable litigation costs and reasonable attorney fees” it

incurred after the date of its offer of judgment. See Okla. Stat. tit. 12 §

1101.1.B.

The Court notes that reductions as high as twenty percent have been applied in

cases where vague, block-billed time entries prevent courts from determining time spent on

specific tasks. The Court concludes that a ten-percent reduction is appropriate in this case,

particularly given the fact that the lack of billing clarity has already resulted in some per-

centage-based adjustments.

No. 12-cv-411

c/w No. 15-cv-455

Although CEP is entitled to recover under § 1101.1.B, that statute does

not create a right of double recovery. CEP has already received an award of

attorneys’ fees as the prevailing party on a fee-bearing claim. CEP has pre-

sented no evidence or argument that the fees it is requesting under § 1101.1.B

are not accounted for by the Defendants’ joint motion for fees. The Court

concludes that, to the extent CEP’s attorneys’ fees following the offer of judg-

ment are both reasonable and allocable to CEP’s defense of the claims as-

serted by the Millers, Mr. Smith, and Ms. Parker, those fees have already been

awarded to CEP under Defendants’ joint motion for fees.’° See Lunn v. Cont?l

Motors, Inc., 2025 OK 29, 79, 568 P.3d 589, 592 (recognizing that a defendant

filing an offer of judgment may recover reasonable attorneys’ fees). An addi-

tional award of fees is not warranted.

VII

For the reasons stated above, Defendants’ motion to amend their mo-

tion for attorneys’ fees [Dkt. 567] is denied. Their motion for attorneys’ fees

[Dkt. 557] is granted in part. Defendants are entitled to recover $352,432.43

collectively from Mr. Miller, Mrs. Miller, Mr. Smith, and Ms. Parker. Of that

amount, Mr. Smith and Ms. Parker are responsible for no more than

$343,914.43.

DATED this 17th day of June 2026.

JOHN D. RUSSELL

United States District Judge

© Because the offer of judgment was made following the resolution of Defendants’

motions for summary judgment and the subsequent motions to reconsider, none of the work

performed after that date concerned RICO claims. There is therefore no need to consider

whether any of the time spent on the RICO claims that was excluded from Defendants’

joint request could nevertheless be recovered under § 1101.1.B.